Stepping Up the Pace of Ratifications of the ICC Amendments on the Crime of Aggression : Where do we stand now?

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President Khama of Botswana (right), Dr Athaliah Molokomme, Attorney General of Botswana (left), Mr Khama, Minister of Defence of Botswana (centre).

In the summer of 2010, the Assembly of States Parties to the Statute of the International Criminal Court, meeting in Kampala, Uganda, adopted amendments to the ICC Statute which define the crime of aggression and provide for the jurisdiction of the ICC over aggression. Under those amendments, the ICC will only be able to exercise jurisdiction over the crime of aggression once 30 States have ratified or accepted the amendments. Furthermore, the Court may not exercise jurisdiction over aggression until 1 January 2017. The amendment provides that there will also be the need for a further decision of the Assembly of States Parties to the ICC Statute to activate the jurisdiction of the Court over aggression. Unlike the Rome Statute of the ICC, ratifications of the Kampala amendments seemed to be going slowly with only 3 states (Liechtenstein, Samoa and Trinidad & Tobago) ratifying the amendments by the end of 2012. However, the pace of ratifications seems set to pick up in 2013. Luxembourg ratified the aggression amendment in January and Estonia did the same in March. In addition, two states – Germany and Botswana – have now completed their domestic processes for ratification and at least one other (Uruguay) is well on the way. The German parliament adopted its Act of Ratification of the Kampala Amendments at the end of February and should deposit its instrument of ratification soon. On April 15, the President of Botswana signed Botswana’s instrument of ratification of the Kampala amendment at a workshop held in Botswana that I was speaking at. He signed the instrument of ratification at a dramatic opening session of a workshop held for African governments on ratification and implementation of the crime of aggression. [On a personal note, I had never seen an instrument of ratification being signed before and I still have not as I arrived at the workshop after the opening session! The workshop was organized by the Government of Liechtenstein and the Global Institute for the Prevention of the Crime of Aggression which has a great website that contains many resources on the crime of aggression.] On April 10, one house of the Uruguayan Parliament (the Chamber of Deputies) approved the bill on ratification of the Kampala Amendments unanimously and the bill is set to go to Uruguayan Senate in the coming weeks (see this report by the Parliamentarians for Global Action).

For the court to be able to exercise jurisdiction over aggression by the beginning of 2017, there will actually need to be 30 ratifications by the beginning of 2016 as the amendments only take effect for each State party one year after the instrument of ratification is deposited. There seems to be a possibility that this number will be reached but that is not so clear.

Although the pace of ratifications is increasing, there are still a number of questions about the operation of the crime of aggression that remain unresolved. One key issue, which I highlighted in a post just after the Kampala Conference, is that there is disagreement as to whether the ICC will be entitled to exercise jurisdiction with respect to aggression committed by a State party to the ICC which has not accepted the Kampala amendments but which has also not opted out of the Kampala regime. Essentially, the question raised here is whether the fact that a State which is a victim of (or claims to be a victim of aggression) has accepted the Kampala amendment suffices to give the Court jurisdiction over that crime (alleged crime). In short, will the regime relating to aggression be the same as the regime relating to other crimes – jurisdiction on the basis that a State of territoriality or a State of nationality is a party to the Statute? Or is there something different about the crime of aggression? Back in 2010 differing views were expressed on this question the this blog (see here and here).

A second unresolved question is whether States should implement aggression into their domestic law, and if so, with what jurisdictional regime. Again, the debate here is whether aggression is different or whether it should be treated like other international crimes that domestic courts can prosecute for with broad extraterritorial (perhaps, universal jurisdiction). I wrote a piece back in 2010 in which I argue that aggression is indeed diferent. I argued that domestic courts of the alleged aggressor State and domestic courts of the victim (exercising a form of self help) are the only domestic courts entitled to prosecute for aggression. It is interesting to note that some States have recently amended their criminal laws to include aggression (Luxembourg, Croatia, Slovenia).  Although these aggression provisions appear to be quite broad, the question is to what extent should they be interpreted as being limited by any relevant international law principles regarding the jurisdiction of the domestic courts.

The first of these issues will ultimately be decided by the ICC itself. The second is likely to take longer to resolve.

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Clément Marquet says

May 1, 2013

Doesn't the second question already have an answer?

The resolution adopted in Kampala mentionned in Annex 3, par. 5 "It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State."